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EU Framework Employment Directive

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Last updated 20th January 2024.

This directive has continued to have important effects on how employment tribunals in Britain interpret and apply discrimination law, even after Brexit. From the start of 2024 some case law on it has been incorporated into wording of the Equality Act, but other areas are unclear.

Summary

  • The Framework Employment Directive was the key directive obliging member states, including the UK when it was a member of the EU, to enact anti-discrimination legislation for disabled people. It was limited to employment and related areas.
  • There are various instances, such as the meaning of “disability” in employment claims, where the Directive or cases interpreting it have been – and after Brexit continue to be – important in interpreting the Equality Act (EqA): below Where does (or may?) EU law affecting UK courts’ interpretation of the Equality Act?
  • After Brexit, from 2021 to the end of 2023, the Directive and cases on it were largely still likely to be applied by the British courts: below 2021-2023.
  • From 1st January 2024, some effects of the Directive and cases on it have been incorporated into the wording of the EqA itself. In other areas, how far cases on the Directive continue to have effect after that date is unclear: below How far is the directive still relevant to Equality Act, from 1st January 2024?
  • Unlike the EqA, disability discrimination law in Northern Ireland (separate page) must continue to comply with the EU Framework Employment Directive even after 2020. It cannot be amended to be inconsistent with the Directive.

The Directive

Broadly, the EU Framework Employment Directive applies to discrimination in the area of employment, self-employment, and “occupation”. It covers discrimination on grounds of religion or belief, disability, age or sexual orientation. Both direct and indirect discrimination are covered. It includes a requirement to make reasonable accommodation for disabled people. In the UK we call this reasonable adjustments.

The full text of this directive 2000/78/EC is on the EurLex website. The directive was unanimously passed by the EU Council of Ministers in 2000, so the UK agreed to it. Indeed the directive was influenced by UK disability legislation.

What is a directive?

A directive is legislation by the European Union which is not intended to apply directly in member states (though it may have direct effect (below) if not properly implemented). Member states are supposed to pass national laws to put the directive into effect. Accordingly, Britain was required to amend its equality legislation so far as this did not already give the protection required by the Directive.

Nevertheless a directive can – and indeed should – be considered by the courts of member states, where the court decides that domestic legislation fails to implement the directive. Also courts of member states are bound by decisions of the EU Court in Luxembourg on how directives are interpreted, for example on the meaning of “disability” in the Framework Employment Directive.

After Brexit the UK is no longer a member state, and I discuss below how far British law says our courts should still follow the Framework Employment Directive and cases on it.

2021 – 2023

After Brexit, up to the end of 2023 (ie probably for discrimination which occured up to the end of 2023), mostly the Framework Employment Directive and cases on it were still likely to be applied by the British courts. See Archive: Effect of EU law when interpreting Equality Act, 2021 to 2023.

How British courts took the Directive into account is discused below: How did UK courts take the Directive into account, up to the end of 2023?

How far is the Directive still relevant to Equality Act, from 1st January 2024?

From the start of 2024, the Retained EU Law (Revocation and Reform) Act 2023 (REUL Act) has largely abolished the supremacy of EU law in Britain (so far as it still remained): Effect of EU law when interpreting Equality Act, from 2024>Supremacy of EU law ended on 31st December, 2023.

However British regulations expressly preserve some effects of the Framework Employment Directive or cases on it (below). Also there are British statutory provisions on how far British courts should follow pre-2021 EU case law – Effect of EU law when interpreting Equality Act, from 2024>Pre-2021 EU case law will “normally” still apply – although it is unclear how far these allow courts to go against the wording of the EqA, after the end of 2023.

So what effect does the Framework Employment Directive and cases on it still have on disability discrimination rights under the EqA? In brief:

When brought into force, other provisions in the REUL Act will create further uncertainty on how far EU case law should be followed in Britain: see Retained EU Law Act 2023>Easier for UK higher courts to override EU cases?

Where does (or may?) EU law affect UK courts’ interpretation of the Equality Act?

Meaning of “disability”

To comply with EU court decisions on the Framework Employment Directive, British courts have interpreted “disability” more widely than the wording of the EqA would normally allow, so as to include impairments whose substantial effect is not really on “normal day-to-day” activities but which otherwise hinder full and effective participation in professional life. Examples include where the substantial effect is on an exam for promotion, or applying for a job. This is likely to include the effect of a stammer in a job interview, for example.

British regulations expressly preserve this wider meaning of “disability”, from 1st January 2024: Disability: ‘Normal day-to-day activities>Extended meaning.

Indirect discrimination “by association”

According to the EU Court decision in CHEZ, a person can potentially claim indirect discrimination even if they do not themself have the relevant protected characteristic. S.19 EqA allowed only claims by someone with the protected characteristic.

From 1st January 2024, a new s.19A expressly allows indirect discrimination claims by someone without the protected characteristic provided the claimant is put at substantively the same disadvantage as people who have the characteristic. For example a person who does not have a disability as defined in the EqA may be able to claim indirect disability discrimination. See Indirect discrimination>S.19A: Indirect discrimination “by association”.

Work placements related to education courses

In Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust, 2016, the Court of Appeal ‘re-interpreted’ the Equality Act to comply with the directive, so that students discriminated against by a work placement provider are not left without a claim. See Work placements related to education courses.

This ‘re-interpretation’ has not been expressly preserved by regulations from the start of 2024. The position from that time is therefore unclear. The courts will need to decide: Effect of EU law when interpreting Equality Act, from 2024>EU law going beyond EqA wording but not preserved by regulations.

Claims by police officers in respect of disciplinary action

Following changes to police regulations which meant that decisions on disciplinary action were often made by misconduct panels rather than chief constables, the wording of the EqA could leave police officers without an employment tribunal claim. In P v Commissioner of Police of the Metropolis, 2017 (confirmed in Eckland, 2022) the Supreme Court used the Marleasing principle to “re-interpret” s.42 EqA so as to give an employment tribunal claim where there was a breach of the Directive. For more see Employees, workers and beyond>Claims by police officers.

This ‘re-interpretation’ has not been expressly preserved by regulations from the start of 2024. The position from that time is therefore unclear. The courts will need to decide: Effect of EU law when interpreting Equality Act, from 2024>EU law going beyond EqA wording but not preserved by regulations.

Victimisation “by association”

The wording of the EqA does not allow a claim for victimisation where the protected act (eg a claim for discrimination, or giving evidence or information for one) because of which the claimant has been victimised was done by someone else, eg a spouse, friend or associate. An employment tribunal has held that in the light of EU law, the EqA should be read as including victimisation because of a protected act by somone else. The employer did not appeal this point. See Victimisation>Victimisation ‘by association’?

This ‘re-interpretation’ of the EqA has not been expressly preserved by regulations from the start of 2024. The position from that time is therefore unclear. The courts will need to decide. However, it may be difficult to argue for this extended protection from victimisation, as there is no appeal court authority applying this interpretation to victimisation. See Effect of EU law when interpreting Equality Act, from 2024>EU law going beyond EqA wording but not preserved by regulations.

Post-employment victimisation

Jessemey v Rowstock was a case in which the strict wording of the Equality Act indicated that post-employment victimisation was not covered by the Equality Act 2010. However the EU Framework Employment Directive required it to be covered. The Court of Appeal in 2014 held there was an error in the Act which the court could correct, so the Equality Act 2010 should be interpreted to include post-employment victimisation. For more see Victimisation: Is post-employment victimisation covered?

It seems the court would have corrected this “drafting error” even without needing to rely on EU principles. Therefore, this interpretation is likely to stand despite the fact the abolition of the supremacy of EU law in the UK.

Discrimination by association: direct discrimination and harassment

The wording of the Equality Act 2010 allows a claim for discrimination by association, in the case of direct discrimination or harassment. Broadly this is where the claimant argues they have been discriminated against in respect of someone else’s disability. Its wording has allowed this since it was first passed in 2010. The Act was drafted this way to reflect how previous legislation was already being reinterpreted to comply wiith the Directive, below, in particular to comply with the ECJ decision in Coleman.

This is likely to continue, as the wording of the EqA is wide enough to include discrimination by association in the case of direct discrimination or harassment.

Wider jurisdiction over non-UK employments

Before Brexit, the Bleuse principle might allow people working in the EU for, say, a company registered in the UK to claim under the EqA, even though under the “sufficient connection” test British legislation would not apply. However I think the Bleuse principle is unlikely to still apply, at least from 1st January 2024, and perhaps from the start of 2021: Connection of employment with Great Britain>Wider scope through EU law (Bleuse principle) no longer applicable after Brexit?

“Worker” status?

EU law may potentially influence how far people who are technically ‘self-employed’ can claim under the EqA, under British statutory provisions about how far British courts should take EU case law into account: Effect of EU law when interpreting Equality Act, from 2024>Pre-2021 EU case law will “normally” still apply. This includes the issue of people in the ‘gig economy’. There was a 2020 ECJ decision in Yodel where an employment tribunal had asked the EU Court how far it makes a difference if the individual is given the right to substitute someone else to do the job.

However UK courts may now be much more focused on the 2021 Supreme Court decision in Uber v Aslam.

See Employees, workers and beyond.

Volunteers

A case in 2012 rejected an argument that a claimant who was a volunteer was protected by the DDA under EU law:

A volunteer tried unsuccessfully to rely on the directive in X v Mid Sussex Citizens Advice Bureau. She argued that her volunteering was protected under the Directive, even though the wording of the DDA (which then applied) did not cover it. The Supreme Court rejected her claim in December 2012. It held that – so far as relevant to her case – volunteers were not within the directive. On volunteering generally, see Volunteers.

How did UK courts take the directive into account, up to the end of 2023?

For the position from 1st January 2024, see above How far is the directive still relevant to Equality Act, from 1st January 2024?

Marleasing principle: interpreting Equality Act to comply with Directive, to end of 2023

UK courts and tribunals needed to interpret UK legislation “so far as possible” to offer at least as much protection as the Directive. Subject to limits, the courts and tribunals could even depart from the clear wording of UK legislation. This is often known as the principle in Marleasing, or the duty of consistent interpretation, or of conforming interpretation. It is also sometimes called indirect effect.

Re-interpreting the Equality Act under this principle was by far the most important way in which UK courts and tribunals used the Directive in relation to the EqA.

The Marleasing principle apparently continued to apply after Brexit, ie after 31st December 2020 (except so far as the Equality Act is amended after that date and the EU interpretation is inconsistent with the intention of the amendment). See Archive: Effect of EU law when interpreting Equality Act, 2021 to 2023>Marleasing principle: interpreting the Equality Act to conform with the directive. It is not clear how far, if at all, the Marleasing principle survives the abolition of the supremacy of EU law at the end of 2023: Effect of EU law when interpreting Equality Act, from 2024>EU law going beyond EqA wording but not preserved by regulations.

The principle was not limited to where the EqA is ambiguous. Even if the British statute is clear, wording could be written in to change its meaning: see eg the Lord Mance quote in Assange below, and the Coleman case below where the EAT departed from the wording of the Disability Discrimination Act. However the courts could not change the statute in a manner which was “inconsistent with some fundamental or cardinal feature of the legislation”, ie the change had to “go with the grain” of the legislation.

“Pursuant to the [duty of conforming interpretation], domestic courts may depart from the precise words used, eg by reading words in or out. The main constraint is that the result must “go with the grain” or “be consistent with the underlying thrust” of the legislation being construed, that is, not “be inconsistent with some fundamental or cardinal feature of the legislation”: Vodafone 2, para 38, per The Chancellor and Test Claimants in the FII Group Litigation, para 97, per Arden LJ, in each case citing Ghaidan v Godin-Mendoza [2004] 2 AC 557… .”
Lord Mance in Assange v The Swedish Prosecution Authority (bailii.org), Supreme Court, 2012.

Even when interpreting UK legislation to conform with the Directive, from 2021 the Supreme Court and Court of Appeal could depart from pre-2021 decisions of the EU Court on the meaning of the Directive – though it seems these courts should not “normally” depart from them. See further Archive: Effect of EU law when interpreting Equality Act, 2021 to 2023>Can Supreme Court and Court of Appeal depart from Marleasing principle?

Examples of applying the Marleasing principle

Paterson v Commissioner of Police of the Metropolis, Employment Appeal Tribunal (EAT), 2007
The EAT held that the impairment’s effect on a high pressure exam for promotion was an effect on a “normal day-to-day activity”. The EAT said it would have interpreted the UK definition of disability as it did anyway just looking at domestic law. In any event though it was bound to reach that interpretation by the European Court decision in Chacón Navas.
This wider meaning of disability has now been taken into the wording of the EqA. See further above Meaning of “disability”.

Coleman v Attridge Law, EAT, 2009
The EAT held that the Disability Discrimination Act (DDA) can and should be interpreted – indeed reworded – so as to include direct discrimination and harassment related to someone else’s disability in employment cases.
The wording of the Equality Act 2010 is wider than the DDA, so as to include this. See further above Discrimination by association: direct discrimination and harassment.

For further examples see above Where is EU law affecting UK courts’ interpretation of the Equality Act now?

Direct effect (public sector employers), to end of 2023

Direct effect was only relevant if the UK legislation could not be re-interpreted to comply with the Directive under the Marleasing principle above. I can’t think of any disability discrimination case where a re-interpretation under Marleasing was held not to be possible.

However if re-interpretation under Marleasing was not possible, and the employer was public sector, the court could generally enforce the directive against the employer by giving it “direct effect”, at least up to 31st December 2020.

The principle of direct effect continued to apply after 2020 (ie after Brexit), but subject to some rather unclear preconditions: see Effect of EU law when interpreting Equality Act from 2021>Direct effect. These preconditions were not relevant if the statute could be reinterpreted under the Marleasing principle above, which was doubtless what claimants would try and argue first.

So far as direct effect after 2020 was not excluded by those preconditions, the UK court could give the directive “direct effect” if the employer was a public body, for example a government department or local authority. The directive needed to be unconditional and sufficiently precise, but that test was interpreted quite widely. Where a directive had direct effect, the UK tribunal or court could decide the case before it by directly applying the provisions of the directive.

Direct effect may have allowed (indeed required) a tribunal to decide the case against the public body in a way which had no basis in the UK statute, and which perhaps even contradicted the UK statute.

Whilst the principle of “direct effect” was limited to enforcement against public bodies, later cases held that a similar principle applied to discrimination claims against private sector employers as well, before the end of 2020:

“Horizontal” direct effect (private sector employers)

It seems that this principle does not apply after 31st December 2020: see Archive: Effect of EU law when interpreting Equality Act, 2021 to 2023>Kücükdeveci principle. In any event, like direct effect it was only needed if re-interpretation under the Marleasing principle (above) was not possible.

Because the Framework Employment Directive implemented the fundamental EU right of non-discrimination, it was likely that – up to the end of 2020 – UK courts and tribunals had to give effect to the Directive even against a private sector employer, assuming that the UK legislation could not be re-interpreted under the Marleasing principle.

In the 2010 case of Kücükdeveci, on age discrimination, the EU Court of Justice held that a German court should give effect to the Framework Employment Directive against a private sector employer where the German statute could not be re-interpreted under Marleasing.

There is every likelihood that this applied to disability discrimination also. That view is supported by the later Court of Appeal decision in Benkharbouche. To quote a blog from Cloisters Chambers (archive): “In Benkharbouche v Embassy of Sudan (bailii.org) [2015] … the Court of Appeal held that Directives can be relied on “horizontally” (i.e. between private parties) if the Directive is giving effect to a fundamental right contained in the EU Charter which does not require specific expression in national law, such as the principle of non-discrimination.” I would add that the Court of Appeal in Benkharbouche, summarising the Kücükdeveci case, specifically said that the European Court “held that there was a general principle of non-discrimination in EU law which had to be given effect.”

This principle of relying on a directive against someone other than a member state was sometimes known as “horizontal” direct effect, or the principle in Mangold v Helm.

Amendment of the Equality Act

Up to the end of 2020, Parliament was supposed to amend the UK statute where required to be consistent with the Directive.

Suing government for compensation – Francovich damages

At least where the statute was not reinterpreted, and if a directive did not have direct effect, then up to the end of 2020 an individual who suffered loss as a direct result of the UK’s failure to implement the directive may have been able to sue the UK government for compensation for failing to implement it. This principle was laid down in Francovich v Italy (wikipedia.org). A claim would be in the county court or High Court, not the employment tribunal.

One issue might be whether this was relevant to the Framework Employment Directive, given that up to the end of 2020 it seemed to have horizontal direct effect (above) against private sector employers anyway.

Anyway, such claims cannot be made after the end of 2020: Archive: Effect of EU law when interpreting Equality Act, 2021 to 2023>Francovich damages.

Importance of UN Convention in interpreting the directive

In December 2010 the EU became a party to the UN Convention on the Rights of Persons with Disabilities (CRPD). So far as possible, the Framework Employment Directive must be interpreted in a way that is consistent with this Convention:

Ring v Dansk almennyttigt Boligselskab, EU Court of Justice (ECJ), 2013
The ECJ emphasised the importance of the CRPD, which the EU ratified in 2010. The court said the provisions of the CRPD are now an integral part of the European Union legal order. The EU’s Framework Employment Directive must, as far as possible, be interpreted in a way that is consistent with the CRPD.

In the present case, the ECJ took the CRPD into account in interpreting both the meaning of disability (above), and the duty to make reasonable adjustments.

Changes made to British disability discrimination legislation to reflect the directive

Amendments to the Equality Act from 1st January, 2024

Following Brexit and the REUL Act 2023, British regulations amended the EqA to preserve the existing effect of some EU case law on the directive: retaining a wider meaning of disability in employment claims; and allowing claims for indirect discrimination by someone who does not have the protected characteristic. More: Effect of EU law when interpreting Equality Act, from 2024>EqA regulations preserve parts of EU law.

In the original Equality Act 2010

Most of the Equality Act 2010 was formally brought into force in October 2010. However, as regards employment, the changes below were or may arguably have been already in effect, as being required by European Union law.

  • Discrimination by association. In Coleman v Attridge Law (2008), the European Court decided that the Directive covers direct discrimination or harassment of an employee by reason of another person’s disability. UK tribunals subsequently held that the Disability Discrimination Act 1995 must be re-interpreted to give effect to this (under the Marleasing principle). The Equality Act 2010 used new wording so as to cover this, and also goes beyond the requirements of the directive by prohibiting discrimination by association in areas other than employment, such as provision of services. More: Discrimination by association.
  • Perceived disability. It had been argued that EU law required direct discrimination and harassment to be unlawful against someone who was mistakenly thought to have a disability. The courts did not had to decide the EU law position, but held that in any event this is covered under Britain’s Equality Act 2010. More: Perceived disability.
  • Harassment: Protection against harassment under the DDA may have been too narrow. Again the Equality Act 2010 made changes compared with previous wording (conduct “related to” a protected characteristic). More: Harassment of employees.
  • Justification: My view was that under European Union law the threshold for “justification” of (indirect) discrimination in employment should have been higher than the threshold used in practice under the DDA. The Equality Act 2010 changed the British justification test to that used in Europe.

Changes to the Disability Discrimination Act (DDA) in 2004 to comply with the directive

Regulations to implement most changes required by the Directive came into effect in October 2004. The changes included:

  • abolition of the exemption for employers with less than 15 employees
  • DDA extended to cover most occupations previously excluded from its employment provisions, eg police, prison officers, fire-fighters, and
  • an employer can no longer justify direct discrimination.

Changes required by the directive in relation to post-16 education came into effect in September 2006.

The background: European Union Treaty

The 1997 Treaty of Amsterdam introduced an express basis for EU legislation to combat disability discrimination. From December 2009, when the Lisbon Treaty came into force, the relevant provision was Article 19(1) of the Treaty on the functioning of the European Union (eur-lex.europa.eu) which reads:

Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

Article 19(1) did not prohibit discrimination in the UK (though it seems there was a general principle (below) of EU law which prohibited it). Rather, Article 19(1) provided authority for the European Union to pass legislation to combat discrimination, in areas where the Union had competence. The Union used Article 19(1) (it was then Article 13 of the “Treaty establishing the European Community”) to pass the Framework Employment Directive (discussed above), which became the key directive obliging member states to enact anti-discrimination legislation for disabled people, at least so far as relevant to stammering.

As well as the authority in Article 19, Article 10 of the Treaty required the EU to combat discrimination based on disability when defining and implementing its policies and activities.

General principle of non-discrimination

In the 2010 case of Kücükdeveci on age discrimination – but presumably the same applied to disability – the European Court said it was applying European primary law rather than the Framework Employment Directive as such. The Court said that the Framework Employment Directive gave expression to a general principle of European Union law on non-discrimination, rather than itself laying down the principle of equal treatment in the field of employment and occupation. See further above “Horizontal” direct effect (private sector employers).

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